In (Partial) Defense of Ezra Klein

By now even Kalahari Bushmen no doubt know how Ezra Klein shot himself in the foot in his mouth a last week:

Speaking of the House GOP’s plan to read the full text of the Constitution aloud, Mr. Klein said:

You can say two things about it. One, it has no binding power on anything. And two, the issue of the Constitution is not that people don’t read the text and think they’re following. The issue of the Constitution is that the text is confusing because it was written more than 100 years ago….

The ensuing dogpile, with which I will assume everyone reading this blog is already familiar, mainly focused on the second “thing.” And not without cause.* But from the very start, a lot of people on the right misconstrued or read badly-crafted paraphrases of his first “thing” as being that the Constitution is not legally binding, causing a another huge pile-on that was not deserved. In fact, the first place I read his comments was on a blog which had paraphrased the “binding” portion of the comment as a lead-in to the “over 100 years old” portion.

But once I saw what he actually said, it was immediately apparent that he didn’t even come close to suggesting the Constitution is a dead letter legally. As I said on Twitter 1 January:

Today, even Victor Davis Hanson joined in, misquoting Mr. Klein as having asserted that the Constitution itself, rather than the act of reading it aloud on the House floor has “no binding power on anything.” The error is not essential to his larger point, but it is nevertheless distressing.

There’s plenty of reason to ridicule Klein for the silliness of saying that people can’t understand the Founding document because it’s old. But, trivial though it is, his point that reading it aloud has no legal effect was indeed right. I don’t like it when things my allies say are misquoted and attacked; it’s no better when my allies do it. Obviously Mr. Klein doesn’t appreciate the purpose of the gesture, but that’s no reason to put words in his mouth and slag him for them.

UPDATE (James Joyner): Dodd is now the forth OTB front pager to comment on this. See previous posts:

About Dodd

Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He can kill a mime using only his thumb.
He joined the staff at OTB in May 2007. Follow Dodd on Twitter.

Comments

In classical Athens, public life became dominated by clever and smart-sounding sophists. These mellifluous “really wise guys” made money and gained influence by their rhetorical boasts to “prove” the most amazing “thinkery” that belied common sense.

Isn’t he a Professor of Classical History? This is so false it’s stupid. If I were one of his students, I’d ask for my money back. The sophists were, basically, the first paid educators. They were the first practitioners of academia, the first mathematicians, and the first people who tried to set up a practical philosophy of virtue and ethics. Socrates hated them for taking money to educate (he’d not doubt frown on Hanson’s profession as a PAID EDUCATOR), while Plato hated them for ignoring the divine, spiritual ideal in favor of rough, practical ethics.

I remember reading some of Hanson’s classical histories when I was in high school and college. This article makes me question whether I should trust anything he wrote in them. Indeed, it makes me wonder if he understands the Greeks at all.

“Incidentally, I do know what Mr. Klein was actually trying to say about the Constitution’s age making it hard to understand. As Mr. Hanson noted, it’s pure sophistry. But that’s beside the point.”

I dunno, Dodd. I think Ezra was trying to say the Constitution is hard to interpret because, etc., but letting that slide, and taking his words at face value, you have to admit parts of it are hard to understand. Consider the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

I don’t understand what the words ‘A well regulated Militia…’ mean in the context of the right to keep and bear arms. On it’s face, the amendment says, the right to bear arms in connected to having a state militia, no? SCOTUS ruled to the contrary in Heller. But then I think to myself, well, then, why didn’t the author of the Second just say:

The right of the people to keep and bear Arms shall not be infringed.

Why should the right to bear arms be in some sense contingent on a state’s having a well-regulated militia? What was the point of that? In a sense, SCOTUS ruled that, in effect, there was no point to saying that in the Second Amendment. OK. But I’m still left trying to puzzle out why the amendment was worded the way it was, to understand the amendment as worded. (And we haven’t gotten to the question, Is the word ‘regulate’ in the Second Amendment being used in the same way as the word ‘regulate’ in the Commerce Clause? But life is too short.)

The Second Amendment isn’t hard to understand unless you want it to be. The verbiage is old fashioned but the rules of grammar haven’t changed. According to Roy Copperud (retired professor of journalism at the University of Southern California, member of the usage panel of the American Heritage Dictionary, and the author of American Usage and Style: The Consensus), “[t]he words ‘A well-regulated militia, being necessary to the security of a free state,'” are not a restrictive clause. Rather, that phrase “constitutes a present participle. It is used as an adjective, modifying ‘militia,’ which is followed by the main clause of the sentence (subject ‘the right’, verb ‘shall’). The ‘to keep and bear arms’ is asserted as an essential for maintaining a militia.”

Further, “[t]he sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia…. The right to keep and bear arms is deemed unconditional by the entire sentence.”

And, yes, the word ‘regulate’ in both instances means the same thing: “to make regular.” This is not, of course, what the word has “evolved” to mean since FDR.

Young Ezra Klein is correct, reading the Constitution on the House floor is not binding. However, his implication was that it was meaningless, when in actuality, the reading is not binding because the Constitution already is totally and completely binding on all Americans, but specifically and especially on those directly administering the government created by the Constitution. Reading it was simply a reminder of the full force and impact of the binding on a body that must deal with issues within the confines of the Constitution.

Often, after initial training, the fundamental rules are not repeated. However, when those rules become often broken or disputed, it is wise to get back to the basics and remind all involved they have forgotten themselves. So the reading was not meaningless or a “stunt” as so many have implied. It was good government to get back to basics. One can understand why so many on the Left want to deride this reading and claim the Constitution is hard to understand, it is the same with any delinquents who wish to keep erosions of the rules to cover for their misbehavior.

All those in government having been admonished that they have failed to properly govern themselves and reminded of the basic structure and rules from which to govern themselves should be cautioned that may either reform their behavior or have it reformed for them.

Sam, it helps to consider the times that the 2nd Amendment was written in. We were a frontier country, with wilderness everywhere and quite a bit of it inhabited by “hostile indians” (no I don’t want to get into a “white man/native american” arguement, just using the frame of mind of the 1780’s)

Militia’s were as common as hounds teeth, most of them “well regulated”, very few of them by a “state” (most were locally formed and controlled), but all of them for the security of the “state” , many jurisdictions REQUIRED that all able bodied men own and maintain a weapon.

The “state” was an ideal, they were a part of it, but for many state government was a long ways away and of very little help in the immediate moment of an “indian uprising”. They were on their own.

Awww don’t feel badly. No grown ups even care. As IF we expect anything different from a 26 year old know it all. Well, not including the MSNBC and Journolist frat club, that is. His meaning (1) was obvious. “Nah Nah you can’t make me”. Ya know, like all the ~sophisticates. Regarding (2) “Oh please, you old fogies are so yesterday”.

@wr – where are you getting this 200 years before? United States v. Miller (1939) was the first SCOTUS case to directly address the 2nd Amendment. In an of itself, it only addressed the application of the National Firearms Act (NFA) to the possession of sawed off shotguns unless properly taxed by the federal government. The case itself was a set up to validate the New Deal legislation with procedural issues as well as defendant funding, conspiring so that the defendant nor his counsel attended the hearing.

In any case, the SCOTUS had never ruled that the possession of all firearms for self defense was limited by the militia clause in the 200 years prior to Heller. Circuit courts construed Miller in an effort to impose gun control but that has now been resolved by a much more briefed and argued decision in Heller.

I understand all that Tom. And I think Heller was correctly decided. My point was, pace Dodd, that, in fact, the Amendment is not easy to understand. One need only read Heller to see that. As the majority pointed out, the 2d Amendment is the only one that carries such a prefatory clause. That says to me that something’s afoot. And, once again, if you read Heller, you’ll find the majority spent some time arguing that the prefatory clause, the militia language, did not impose a limitation on the right to bear arms, the so-called collective rights interpretation. But then we’re still left with the question, why put that prefatory clause in the amendment?

I’ll make a guess. And this goes the general question of the Constitution’s being hard to understand. What percentage of the American people do you think believe the Bill of Rights acts as a check on state actions automatically? I’ll bet a very, very big percentage. Of course, they’re wrong. The BOR was, originally, a check only on the federal government, and understood that way. It has only been through the doctrine of incorporation that the BOR has been held to bind the states, too. (And not all of the BOR — portions of it have not yet been incorporated.). And it was not until McDonald v. Chicago, decided in 2010, that the 2d was was incorporated against the states.

Here’s my–admittedly wild–guess as to why the prefatory clause was placed in the amendment: It was meant as a stealth form of incorporation. The BOR was, as I said, originally understood as a check only on the federal government. But there’s a problem here, namely, the state militias. Now the Militia Clause gives the federal government the power

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress [Art. 1, section 8]

That’s to say, the Militia Clause gives the federal government power over the state militias–they are ultimately under the control of the federal government. I say ‘ultimately’ because the states still had control to some extent over their own militias, but utlimately, the federal government controlled. But suppose some state decided to pass a law abridging the right of its citizens to own and bear arms. This would collide with the federal governments power to organize, etc, the militia. So the prefatory language was put in the 2d to signal to the states that they could not abridge the right of their citizens to own and bear arms lest this impede the federal government’s constitutional power over the state militias. I read the clause preceding the Militia Clause as saying a state could not even decide not to have a militia if the federal government said it had to organize one; the Congress shall have the power:

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions

That is to say, states were required to have militias so as to provide for the common defense should the need arise. And my theory is the prefatory language was put in the 2d Amendment to indicate to the states that they could disarm their citizens, for armed citizens were necessary for the militia. (In fact, the Militia Act of 1793 made codified this into federal law.)

And my theory is the prefatory language was put in the 2d Amendment to indicate to the states that they could not disarm their citizens, for armed citizens were necessary for the militia. (In fact, the Militia Act of 1793 codified this into federal law.)

“The verbiage is old fashioned but the rules of grammar haven’t changed. ”

When you have to start bringing in experts (and lawyers) to interpret, the meaning is not clear. One assumes there was some purpose to the preface.

” Incidentally, I do know what Mr. Klein was actually trying to say about the Constitution’s age making it hard to understand. As Mr. Hanson noted, it’s pure sophistry. ”

I will respectfully disagree. reading lots of history, it seems pretty clear to me that there is much about other eras that we just do not understand very well as they are too foreign to our ideas about the way the world works. Think about it. For thousands of years we had monarchies. How well do those of living today really understand what that would mean? I think it presumptuous in the extreme to think that those living today can really understand what life was like in an era with a life expectancy of 40, high infant mortality and the ability to own another human being.

The “Well regulated militia” language is there because anti-federalists thought that federal government control of a standing regular army was the path to tyranny. So they insisted on the 2nd in order to relieve the federal government of an excuse to raise a standing force. It is also why the funding of the army is limited constitutionally in article 1 section 8, (although that tid-bit is is pretty much ignored these days despite our new champions of originalist fidelity). and why most of the language talks about federal control of the militia as others have mentioned.

The funny thing about the 2nd is that it’s primary purpose for inclusion was to insure that the federal government would not have access to a large standing army, but since we now have one the only real reason the founders (at least the anti-federalists) included it at all is gone. So really if you were hell bent on original understanding in your constitutional interpretation the 2nd amendment is as useless as the 3rd.

And my theory is the prefatory language was put in the 2d Amendment to indicate to the states that they could not disarm their citizens, for armed citizens were necessary for the militia. (In fact, the Militia Act of 1793 codified this into federal law.)

Since the Militia is no longer necessary to security, the right to bear arms is no longer necessary. Or rather one could so argue.

No, I don’t think you can. I agree with the holding in Heller, the prefatory clause is not to be read as something akin to ‘if an only if’ — that’s to say, the prefatory clause does not limit the right to keep and bear arms, it only sets out one reason why the people can keep and bear arms. The clause does not state necessary and sufficient conditions for the right, it only states a sufficientcondition. I think my language above (and the prefatory clause) is misleading in that respect. An armed militia is necessary to the security of the state, and that is a sufficient condition for the right to keep and bear arms, but nothing in amendment indicates that there may be other sufficient conditions.

“Why did supreme courts rule differently for the two hundred years before Heller?”

It didn’t.

That was easy.

That’s incorrect:

[T]he majority opinion of the Supreme Court in District of Columbia v. Heller in 2008 clearly suggested that Cruikshank and the chain of cases flowing from it would no longer be considered good law as a result of the radically changed view of the Fourteenth Amendment when that issue eventually comes before the courts:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government. [My emphasis, ]</blockquote<

@sam – He didn’t ask about incorporation under the Fourteenth Amendment (and certainly didn’t ask about dicta relating thereto). He asked about 200 years of alleged supreme courts [sic] rulings on the Second Amendment.

Yeah that was clumsy. I should have gone into it more. If you read Heller, you will see that Justice Scalia spends a lot of time arguing with Justice Stevens that Presser and Miller support the individual rights interpretation and not, as Justice Stevens was maintaining, the collective rights interpretation. There is some warrant for saying that, prior to Heller, at least for some, maybe most, constitutional scholars, the Court’s decisions had supported the collective rights interpretation: “Until quite recently judges and the authors of the casebooks used to train law students accepted the collective rights reading of United States v. Miller (1939) [ The Second Amendment Under Fire: The Uses of History and the Politics of Gun Control]”.

As to being “utterly beside the point” — you don’t own the comment thread.